14-005276RU Robert G. Dawson vs. Department Of Business And Professional Regulation, Division Of Pari-Mutuel Wagering Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Friday, April 10, 2015.

Summary: Portion of Greyhound Veterinary Assistant Procedures Manual was in violation of section 120.54(1)(a); Petitioner failed to prove that the rule 61D-6.002 is an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT G. DAWSON,

Petitioner,

vs. Case No. 14 - 5276RU

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

DIVISION OF PARI - MUTUEL

WAGERING,

Respondent.

_______________________________/

FINAL ORDER

On December 9 , 201 4 , a duly - noticed hearing was held by

video teleconference at sites in West Palm Beach and

Tallahassee, Florida, b efore F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jennifer York Rose n blum , Esquire

13386 La Mirada Circle

Wellington , Florida 3 3414

Jeremy E. Slusher, Esquire

Kubicki Draper

515 N orth Flagler Drive , Suite 1800

West Palm Beach, Florida 33401

For Respondent : Marisa G. Button , Esquire

Jason L. Maine, Esquire

Department of Business and

Professional Regulation

1 940 North Monroe Street , Suite 40

Tallahassee, Florida 32399 - 2202

STATEMENT OF THE ISSU ES

The first issue is whether the Greyhound Veterinary

Assistant Procedures Manual published by the Division of Pari -

Mutuel Wagerin g ( " Division Manual " ) constitutes an unadopted

rule in violation of section 120.54(1)(a), Florida Statutes

(2014) . 1/ Petitioner further conten ds that the agency materially

failed to follow applicable rulemaking procedures with respect

to the Division Manual ; that it is vague, fails to establish

adequate standards for agency decisions, invests unbridled

discretion in the agency ; and is arbitrary and capricious , i n

violation of sections 120.52(8)(a), (d), and (e).

A second issue is whether Florida Admini strative Code

Rule 61D - 6.002 is an invalid exercise of delegated authority

because it enlarges, modifies, or contravenes the provisions of

section 550.0251(3), Florida Statutes ; is vague, fails to

establish adequate standards for agency decision, or vests

unbridled discretion in the agency; or is arbitrary and

capricious, in violation of sections 120.52(8)(c), (d), and (e).

Petitioner further contends that rule 61D - 6.002 violates

Petitioner ' s due process rights and is therefore

unconstitutional.

PRELIMIN ARY STATEMENT

Petitioner , a licensed greyhound trainer, filed t h ese rule

challenge s on November 7, 2014 . The case was duly - noticed for

hearing on December 9, 2014. Respondent filed a Motion to

Abate, noting that a Notice of Rule Development for Florida

Administrative Code Rule 61D - 6.005 had been filed and arguing

that the rule challenges should be abated pending that

rulemaking. A telephonic motion hearing was held, and an Order

Denying Respondent ' s Motion to Abate was subsequently issued on

December 2, 2014. The parties filed a Joint Pre - hearing

S tipulat ion . T he agreed - upon facts were accepted at hearing and

are included among the F indings of F act below. Petitioner

presented the testimony of three witnesses: Ms. Jamie Testa, a

kennel helper for Nort hshore Kennel; Mr. Arthur Agganis, owner

of Agganis Kennel s and Petitioner ' s employer; and Mr. Jorge

Callejas, Respondent' s southern regional manager of greyhound

tracks. Petitioner ' s Exhibits P - 1 through P - 11 and P - 13 through

P - 21 were admitted into evidence. Petitioner's Exhibit P - 12,

the transcript of an earlier vide o teleconference hearing , was

not admitted. Respondent presented the testimony of two

witnesses: Mr. Andre Tribble, an investigator with Respondent ;

and Ms. Jill Blackman, c hief o pera tions o fficer for Respondent .

Respondent did not offer any exhibits. Official recognition

was given to the fact that Respondent filed a notice of r ule

d evelopment for existing r ule 61D - 6.005, as well as to the Order

of the Division of Administrative Hearings (DOAH) in Department

of Business and P rofessional Regulation, Division of Pari -

Mutuel Wagering v. Alves , Case Nos. 11 - 1578PL, 11 - 1579PL

(Fla. DOAH Sept. 19, 2011; Fla. DBPR Oct. 12, 2011) . The

one - volume Transcri pt of Proceedings was filed on December 29,

2014. The one - volume Amended Transcript of Proceedings was

filed on January 9, 2015. P roposed final orders were timely

submitted by both parties and were carefully considered.

FINDINGS OF FACT

1. Petitioner, M r. Robert Dawson , is the holder of an

Unrestricted U - 1 Professional Pari - Mutuel License authorizing

him to train racing greyhounds pursuant to s ection 550.105,

Florida Statutes.

2. Mr. Dawson is subject to chapter 550 and the

administrative rules promulgated thereunder in Florida

Administrative Code C hapter 61D.

3. Respondent, the Department of Business and Professional

Regulation, Division of Pari - Mutuel Wagering ( " Division " ) , is a

state agency delegated the responsibility for the implementation

and enforcement of Florida ' s pari - mutuel laws under chapter 550 ,

including the licensing and regulation of all pari - mutuel

activities in Florida.

4 . In the past, the Division used to t ake urine samples

from dogs after a race, usually from the winner. The dogs to be

tested would be announced , and the owner or his representative

c ould then witness the sample collection and sign indicating

that he had witnessed the sample being taken.

5 . In late 2008 , the Division changed the procedures that

it follows and began to take pre - race samples. Mr. Jorge

Callejas testified that many dogs tend to urinate prior to the

race, and it was noted that , after a race , they were tired and

not as interested in urinating. The Division had monitored

statistics and found that with post - race collections, the number

of samples that did not have a sufficient quantity for testing

w as very high. After switching to pre - race tes ting, the number

of untestable samples went down significantly . At that time,

they began using an earlier version of the Division Manual,

which sets forth procedures to be followed by veterinary

assistants employed by the Division working with the racing

greyhound program.

6 . The Division now conducts random pre - race urine sample

collection s at all of its licensed greyhound race tracks.

7 . The Division uses the Division Manual at all greyhound

racing facilities in the s tate of Florida.

8 . The Division provides the Division Manual to its

v eterinary t echnicians working at the licensed greyhound race

tracks.

9. The Division Manual was last amended on March 31, 2010.

The Division Manual is properly attributable to the Division as

an instit ution.

10 . The Division filed two a dministrative c omplaints

against Mr. Dawson for violations of section 550.2415, which are

pending before DOAH with case numbers 14 - 4450PL and 14 - 4719PL.

11 ainers of dogs with a positive urine test can face

severe sa nctions.

12 . As a greyhound trainer, Mr. Dawson ' s responsibilities

include feeding the dogs, examining them for injuries, keeping

them at the proper weight, preparing them for weigh - in before

each race, and keeping them healthy. Occasionally, h e also

personally take s the dogs to the track.

13 . On a race day, the dogs are typically walked , cleaned

up by a kennel helper, weighed - in , and then given to the

" leadouts. " Leadouts are not employed by the individual

kennels, but are employed by the track. T he leadouts place the

dogs in the g inny pit area, sometimes called the lock - up, an

area where the dogs stay until the ir scheduled race. Trainers

and kennel helpers are not allowed in the g inny pit area.

Trainers and helpers therefore have no access to th eir dogs for

an extended period of time until the race begins and have no

control over the employees of the track ( leadouts and kennel

master ) who do have access to the dogs during that time.

14 . Pre - race urine specimens are randomly taken from dogs

in an outdoor, fenced area adjacent to the ginny pit building by

veterinary assistants employed by the Division . This area is

open to view by the public, including trainers or their helpers,

but only track employees and D ivision personnel are allowed

access to th e area. The area where trainers have to be to pick

up their dogs is on the opposite side of the building, and from

this location, the view of the open area where samples are taken

is blocked by the building.

15 ainers and helpers are routinely occ upied with their

other dogs and do not have time to watch the pre - race sample

collection, especially since they do not know if one of their

dogs will be sampled or not.

16 . The Division does not individually notify each trainer

of record or kennel worker for racing animals when random pre -

race urine collection will occur.

17 . Trainers and kennel workers are not advised that their

greyhounds are going to be tested on a particular day.

18 . The Palm Beach Kennel Club does not have video cameras

in place that would allow trainers or their helpers to view the

dogs while they are in the ginny pit area. Mr. Arthur Agganis,

as president of the Palm Beach Greyhound Association, petitioned

the general manager to put in some cameras, at the association ' s

expense , but no cameras have been installed. There is a camera

in the open area where samples are collected, but trainers and

helpers cannot view the feed from this camera.

1 9 . In horseracing, horse trainers are not prohibited

from physically accessing their horses prior to the start of

each horse ' s race.

20 . As the southern regional manager of greyhound tracks,

Mr. Callejas visits the tracks under his responsibility and

ensures that each track is following the Division Manual ' s

sampling and testing procedure s, including the chain - of - custody

procedures.

21 . Ms. Jill Blackman testified that the Division Manual

was a guideline used for training vete rinary assistants in the

field.

22 . Section 3 of the Division Manual ( " Section 3 " )

consists of nine subsections: 3.1 Greyhound Sampling Priority;

3.2 The Collection Process; 3.3 Meeting and Identifying the

Greyhound; 3.4 Collecting the Specimen; 3.5 Sealing the Sample;

3.6 Completing the Required Forms; 3.7 Storing the Sample;

3.8 Preparing Samples for Shipment; and 3.9 Shipment of Samples.

23 . After the veterinary assistant identifies the dog and

collects the sample , the sample is sealed in the cup with

evidence tape, labeled, and taken to a freezer in the veterinary

assistant ' s office, where it is locked up.

24. S ection 3 does not require the Division to advise

trainers of when urine sample collection occurs.

25 . Section 3 does not require the Division to ensure

that the trainer witness the urine sample collection process

or to ensure that the Division obtain the trainer ' s signature

on the specimen card.

26 . The Division Manual states on page six that one of the

primary duties of the veterinary assistant is to " study and put

into practice the procedures outlined in this manual. " It goes

on to emphasize the importance that all those collecting urine

samples understand the proper procedures, and " follow those

procedures EACH AND EVERY TIME . "

27 . Section 3 states at page ten, " Those collecting

samples must follow strict chain - of - custody procedures in order

to stand as credible evidence in a judicial proceeding. " It

then goes on to prescribe a " strict sequence of events " that

must be followed to ensure that samples are properly collected,

sealed, and secured to avoid tamp ering or alteration. It sets

forth procedures to correctly identify a greyhound by the

numbers tattooed on its ear, prepare required forms, store

collected sample s , prepare them for shipment , and maintain the

security of the backside areas.

28 . Division employees do not have discretion not to

follow the Division Manual ; its provisions are mandatory and

enforced by the Division .

2 9. The integrity of greyhound racing in Florida is

important to citizens betting on the outcome of races and to the

dog owners , trainers, and other employees who earn their

livelihood in the industry. The procedures followed to collect

samples and otherwise ensure the integrity of the sport are

impor tant to dog trainers and to the public.

30 . A notice of rule development for existing rule 61D -

6.005, entitled Procedures for Sampling of Racing Animals, has

been published.

31 . Mr. Dawson , as a dog trainer subject to possible

discipline under the " absolute insurer " rule, 61D - 6.005, is

substantially affected by the sample collecti on and testing

procedures of S ection 3. He has alleged a real and sufficiently

immediate injury in fact . Chapter 550 contains procedures such

as " split sampling " to protect trainers and ensure integrity of

the testing process , and Mr. Dawson comes within the zone of

interest of chapter 550.

32 . In his petition, Mr. Dawson sufficiently alleged that

Section 3 of the Division Manual was an unadopted rule and

attached a copy of it to his petition.

33 . Section 3 constitutes a rule within the definition of

s ection 120.52(16).

34 . Section 3 , or a substantially similar statement

reflecting the D ivision ' s sample collection process for racing

greyhounds , ha s not been adopted as a rule under chapter 120.

35 . It is practicable and feasible to adopt Section 3 as a

rule.

36 . Rule 61D - 6.005 is uniform in its application and

effect. The rule is not vague, does not fail to establish

adequate standards for Division decisions , or vest unbridled

discretion in the Division. The rule is not arbitrary or

capricious.

C ONC LUSIONS OF LAW

Standin g and Jurisdiction

37 . In administrative proceedings, standing is a matter of

subject matter jurisdiction. Abbott Labs. v. Mylan Pharm.,

Inc. , 15 So. 3d 642, 651 n.2 (Fla. 1st DCA 2009). Section

120.56(4) provides that " [a]ny pers on substantially affected by

an agency statement may seek an administrative determination

that the statement violates s. 120.54(1)(a). "

38 . In order to establish standing, a challenger must show

an immediate " injury in fact " within the " zone of interest "

protected by the statute the alleged unadopted rule is

implementing , or an other statute . See, e.g. , Fla. Med . Ass ' n,

Inc. v. Dep ' t of Prof ' l Reg. , 426 So. 2d 1112, 1114 (Fla. 1st

DCA 1983).

3 9. Respondent urge s that Petitioner has no standing to

bring this unadopted rule challenge because the Division M anual

by its own terms is " an internal training guideline for

veterinary assistant employees " of Respondent and so does not

directly regulate the activities of Petitioner. However, " [t]he

breadth of the definition in Section 120.52(14) indicates that

the legislature intended the term to cover a great variety of

agency statements regardless of how the agency designates them. "

Dep ' t of Admin. v. Harvey , 356 So. 2d 323, 325 (Fla. 1st DCA

1977).

40 . E ven wh ere a challenged rule or its promulgating

statute does not establish requirements to engage in a given

profession, or otherwise directly regulate it per se , members of

that profession have been found to be substantially affected

when the rule nevertheless directly affect s the professional

conduct of persons within that occupation . Ward v. Bd. of Trs.

of the Int . Imp . Trust Fund , 651 So. 2d 1236, 1237 (Fla. 4th DCA

1995) (engineer who frequently designed docks was substantially

affected by proposed rules governing construction of docks and

piers, even though not directly regulated by the rules ). See

also Fed ' n of Mobile Home Owners v. Fla. Manuf actured Hous.

Ass ' n , 683 So . 2d 586, 592 (Fla. 1st DCA 1996)(a prospectus is

such a fundamental element of the mobile home park business that

the procedures required to amend a prospectus have a direct

impact on the business).

41 . Lanoue v. Florida Department of Law Enforcement , 75 1

So. 2d 94, 96 (Fla. 1st DCA 1999) , is instructive. An operator

of a motor vehicle was arrested based upon the results of a

breath test that had been administered pursuant to the implied

consent law. He challenge d the rules governing maintenance and

cal ibration of the breath - test machine and the procedures used

to inspect it, as well as an unadopted rule relating to approval

of providers of the alcohol reference solution that was used to

test the machines. The ALJ found that the driver did not

establish a real and immediate injury in fact, and so did not

show that he was substantially affected by the challenged rules

and non - rule polic y .

42 . The First District reversed. The court noted that the

statutes required the tests to be conducte d substantially

according to methods set forth in rules of the Department of Law

Enforcement. The statute further provided that specified test

results gave rise to a rebuttable presumption that the person

was under the influence of alcoholic beverages to the extent

that his or her normal faculties were impaired and that , should

a person be found guilty of this offense, penalties could be

imposed . Under these facts, the court found that Lanoue had

alleged a real and sufficiently immediate injury in fact an d was

within the zone of interest governed by th ose statutes and

rules. 2 / See also Cole Vision Corp. v. Dep ' t of Bus. & Prof ' l

Reg. , 688 So. 2d 404, 407 (Fla. 1st DCA 1997) ( appellants were

substantially affected by a rule because they were potentially

exp ose d to legal action and monetary penalties through its

implementation).

43 . The facts here are quite similar to those in Lanoue .

Petitioner ' s racing dogs are subject to drug testing. He has

been charged with violations based upon the results of a urine

test administered pursuant to chapter 550 . Petitioner has

alleged that Respondent has unadopted rules that govern the

procedures for taking and testing th ose urine samples.

44 . Contrary to the assertion of Respondent, Section 3

does not merely mimic the statute. T he statute does not set out

the detailed procedures for taking and testing samples. In

fact, Respondent is specifically directed to adopt rules to

implement the section of the statute dealing with the racing of

animals with prohibited medications or drugs . § 550.2415(12) ,

Fla . Stat.

45 . The statute provides that the finding of a prohibited

substance in a race - day specimen constitutes prima facie

evidence that the substance was administered and was carried in

the body of the animal during a race. § 550.2415(1)(c) , Fla.

Stat.

46 . The statute also provides that when a racing animal

has been impermissibly medicated or drugged, Respondent may take

administrative action against licensees that rules of Respondent

make responsible for the condition of the racing dogs.

§ 550 .2415(2) , Fla. Stat. In furtherance of this statute,

Respondent has adopted r ule 61D - 6.002, the " absolute insurer

rule " making trainers responsible. S ignificant s anctions may be

imposed upon violators. § 550.2415(3)(a) , Fla. Stat .

47 . In short, if procedures misidentify the tested sample,

or it is tainted, or test results are unreliable, Petitioner

could be wrongly pen alized. P etitioner is substantially

affected by the procedures for taking and testing urine samples

set forth in Section 3 and has standing to try to show that it

constitute s an unadopted rule.

48 . Respondent next argues, based on United Wisconsin Life

Insurance Co. v. Department of Insurance , 831 So. 2d 239 (Fla.

1st DCA 2002), that because two administrative complaints have

been filed against Petitioner, he has a remedy through his

affirmative defenses in th o se cases and that the unadopted rule

challe nge here is simply an impermissible collateral attack .

4 9. Respondent reads United Wisconsin too broadly. In

that case, the unadopted rule challenge was brought against the

very statement of charges in the A dministrative C omplaint

against United Wisconsi n. Significantly , t here was no s howing

that th ese charges , directed only to United Wisconsin and

alleging facial violation of statutory provisions, were in any

way statements of " general applicability. " The court

specifically noted that the issues raised by the A dministrative

C omplaint arose for the first and only time as a result of

United Wisconsin ' s actions. The court went on to note, that " on

the present facts , " the unadopted rule challenge constituted

only a collateral challenge.

50 . Petition er here challenges as an unadopted rule, not

charges in an administrative complaint , 3 / but instead the

provisions of a manual prepared and distributed by Respondent

and alleged to be generally applicable to all dog tracks in

Florida . Were United Wisconsin to be read so broadly as to

preclude an unadopted rule challenge to such external documents

just because administrative charges have also been filed, th e

provisions of section 120.56(4) would be eviscerated , and the

unique legislative policy goals 4 / of that statutory section would

never be achieved .

51 . Respondent does not contest Petitioner ' s standing to

challenge r ule 61D - 6.002. As a dog trainer subject to that

rule ' s provision making a trainer legally responsible for , and

the " absolute insurer " o f, the condition of his racing

greyhounds, Petitioner has standing to challenge rule 61D - 6.002.

Ward v. Bd. of Trs. of the Int. Impust Fund , 651 So. 2d

1236, 1237 (Fla. 4th DCA 1995)(standing is recognized where

challenged rule directly regulates the ch allenger ' s occupational

field).

52 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. § 120.56(4) Fla. Stat.

Burden and Standard of Proof

53 . The burden is on Petitioner to show that Section 3

constitutes a rule within the meaning of section 120.52 (16) and

that Respondent has not adopted it under applicable rulemaking

procedure s . § 120.56(4)(a) , Fla. Stat . If Petitioner succeeds ,

the burden then shift s to Respondent to prove that rul emaking is

not feasible or practicable. § 120.56(4)(b) , Fla. Stat.

54 . The burden is on Petitioner to show that r ule 61D -

6.002 is an invalid exercise of delegated legislative authority

under section 120.52(8) .

55 . The standard of proof is by a preponde rance of the

evidence. § 120.56(1)(e) , Fla. Stat .

Unadopted Rule Challenge

56 . Section 120.52(16), in relevant part, defines the term

" rule " as follows:

" Rule " means each agency statement of

general applicability that implements,

interprets, or prescribe s law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an existing rule.

The term also includes the amendme nt or

repeal of a rule. The term does not

include:

(a) Internal management memoranda which do

not affect either the private interests of

any person or any plan or procedure

important to the public and which have no

application outside the agency issuing the

memorandum.

This definition contains several overlapping elements.

Agency Statement

57 . A petition challenging a statement as an unadopted

rule must include the text of the statement or a description of

it. A statement may be in any form and does not need to be in

writing. Dep ' t of H igh . Saf. & Motor Veh. v. Schluter , 705 So.

2d 81, 84 ( Fla. 1st DCA 1997). Petitioner sufficiently

identified Section 3 and attached a copy of it to his petition.

58 . T he statement must be shown to be an " agency "

statement . First, the statement must be an expression of the

agency as an institution , not merely the position of an employee

acting on his own . It must be properly attributable to the

agency head or some duly - authorized delegate. Id. at 87

(Benton, J., concurring and dissenting) . Second, even if a

statement is issued by the agency, it does not constitute an

agency statement if it is merely a reiteration or restatement of

policy already clearly established by the implemented statute.

St. Francis Hosp., Inc. v. Dep ' t of HRS , 553 So. 2d 1351 (Fla.

1st DCA 1989). However, if the statement is not simply

restating policy set forth in the statute, but instead expands

upon it or " places upon the statute an interpretation that is

not readily apparent from its literal reading, " then the

statement re presents agency policy. Id. at 13 54. A n agency

statement simply explaining how an existing policy will be

applied to a particular set of facts is not itself a rule ,

however . Envtlust v. Dep ' t of Envtl. Prot. , 714 So. 2d 493,

498 (Fla. 1st DCA 1998). The Division Manual is a stateme nt of

Respondent and Section 3 establishes procedures not set forth in

the statute or adopted rule of Respondent . Section 3 is a

statement of Division policy.

General Applicability

5 9. The requirement that a statement must be one of

general applicability has several facets. It involves first the

field of operation of the statement. Dep ' t of Com . v. Matthews

Corp. , 358 So. 2d 256 (Fla. 1st DCA 1978)(w age rate s applicable

to public works contracts held not to be rules because they

applied only to the construction of a particular public building

and did not establish wages elsewhere in the state into the

future ) . But a statement need not have " universal "

applicability or " unlimited " length of operation. It is

sufficient if the statement applies to a u niform class of

persons or activities for a discernible period, as opposed to

only select individuals or factual situations in a single

instance. Balsam v. Dep ' t of HRS , 452 So. 2d 976 (Fla. 1st DCA

1984)(moratorium on certificate of need applications,

co nsistently applied during only a short period, held to be a

rule). Fla . Pub . Serv . Comm ' n v. Central Corp. , 551 So. 2d 568

(Fla. 1st DCA 1989)(temporary requirement that alternative

operator services hold revenues in excess of local exchange

rates subject to refund was generally applicable). As

succinctly stated in Florida Quarter Horse Racing Association,

Inc. v. Division of Pari - Mutuel Wagering , Case No. 1 1 - 5796RU

(Fla. DOAH May 6, 20 13 ) , aff ' d , 133 So. 3 d 1118 (Fla. 1st DCA

20 14 ) , " A generally applicable statement purports to affect, not

just a single person or singular situations, but a category or

class of persons or activities. " The current Division Manual

has been applicable to all licensed greyhound racing tracks in

the state of Florida si nce March 31, 2010.

60 . The concept of general applicability also involves the

force and effect of the statement itself . An agency statement

that requires compliance, creates or adversely affects rights,

or otherwise has the direct and consistent effect of law is a

rule. State Bd. of Admin. v. Huberty , 46 So. 3d 1144, 1147

(Fla. 1st DCA 2010). Section 3 directly affects th e rights of a

trainer accused of violating provisions related to the racing of

greyhounds that are impermissibly medicated or drugged. As the

Division Manual itself asserts, the purpose for dictating

detailed procedures to be used in collect ing and test in g samples

is precisely to ensure reliable scientific evidence to be used

in future disciplinary proceedings. These procedures thus

directly affect the rights of a trainer charged with a

violation, especially given that the statutory presumption, in

conjun ction with the " absolute insurer " rule, instills the test

results with such a s ignificant , almost determinative, effect.

61 . An agency statement must also be consistently

applicable. In Department of Highway Safety and Motor Vehicles

v. Schluter , 705 So. 2d 81, 82 (Fla. 1st DCA 1997), the court

found three of the challenged policies not to be generally

applicable because an employee ' s supervisor was not required to

apply them, and therefore they could not be considered to have

the " direct and con sistent effect of law. " See also Ag. for

Health Care Admin. v. Custom Mobility, Inc. , 995 So. 2d 984, 986

(Fla. 1st DCA 2008)(Medicaid overpayment formula was not an

unadopted rule because the agency personnel could choose whether

or not to use it); Coven try First, LLC, v. Off . of Ins . Reg . , 38

So. 3d 200, 20 5 (Fla. 1st DCA 2010) (examination manual provided

to examiners of the Office of Insurance Regulation not generally

applicable because examiners had discretion not to follow it).

Respondent ' s employees have no discretion not to follow

Section 3 , and it is consistently applicable.

I mplements, I nterprets, or P rescribes

62 . Section 3 goes beyond the general language of

section 550.2415 to establish specific procedures to be followed

in collecting and testing urine samples from racing greyhounds.

It implements this statutory section and establishes Division

policy as to the exact procedures to be used. Respondent is

specifically direct ed to adopt rules to implement section

550.2415. § 550.2415(12), Fla. Stat. Cf. Bigelow v. Dep ' t of

Envtl. Reg. , 375 So. 2d 12, 13 (Fla. 4th DCA 1979)(explicit

statutory requirement that agency adopt rules invalidated action

taken in absence of rule).

In ternal Management Memorandum

63 . Section 120 .52(16) expressly excludes certain agency

statements from the definition of " rule. " Respondent asserts

that even if Section 3 otherwise would be a rule, it is excluded

from the definition because it is an inter nal management

memorand um . Internal management memoranda are excluded if they

do not affect either the private interests of any person or any

plan or procedure important to the public and have no

application outside the issuing agency. § 120.52(16)(a) , Fla.

Stat.

64 . Respondent cites Department of Revenue v. Novoa , 745

So. 2d 378, 381 (Fla. 1st DCA 1999), in which the court

considered whether the Department of Revenue ' s policy

restricting its employees from preparing tax returns for private

parties duri ng their non - working hours was an internal

management memorandum. The court found :

The Department ' s policy does not " affect

. . . a plan or procedure important to the

public. " Members of the general public have

no arguable interest in the restrictions an

administrative agency imposes on its own

employees. Likewise, the policy does not

apply " outside the agency. " Because the

policy applies only to employees of the

Department, no person or firm outside the

Department could possibly be affected by it.

65 . The same cannot be said for the Division Manual at

issue here. As discussed above, while directly regulating

activities of Respondent ' s employees, t he procedures for taking

and testing of urine samples of racing greyhounds to ensure the

integrity of the sport nevertheless substantially affect dog

trainers and are important to the public. They have application

to an industry outside the agency.

66 . Section 3 of the Division Manual constitutes a rule

within the meaning of section 120.52(16) . It is undisputed that

it has not been adopted under the rulemaking procedures set

forth in section 120.54.

Feasible and Practicable

67 . R ulemaking is not a matter of agency discretion .

Section 120.54(1)(a) requires that statements meeting the

definition of a rule be formally adopted as soon as feasible

and practicable. The burden is upon Respondent to show

that rulemaking is not feasible or practicable under

section 120.54(1)(a) . Respondent has not contended that

rulemaking is not feasible or practicable a nd has not met that

burden. Section 3 of the Division Manual is in violation of

section 120.54(1)(a).

68 . Petitioner also alleges that Section 3 is an invalid

exercise of delegated legislative authority in violation of

section s 120.52(8)( a ), (d), and ( e ) . These allegations are

beyond the scope of a section 120.56(4) proceeding and are

premature. If, and when, Respondent takes action to formally

adopt Section 3 as a rule, it may be challenged on these

grounds .

Absolute Insurer Rul e Challenge

6 9. Rule 61D - 6.002, entitled " General Duties and

Responsibilities, " provides:

(1) The trainer of record shall be

responsible for and be the absolute insurer

of the condition of the horses or racing

greyhounds, he/she enters to race.

Trainers, kennel owne rs and operators are

presumed to know the rules of the division.

The trainer of record shall be identified on

Form DBPR PMW - 3360, Kennel Personnel Roster,

adopted and incorporated by Rule 61D - 10.001,

Florida Administrative Code, which the

trainer shall pro vide to the chief inspector

and racing secretary at any track where the

trainer enters racing animals in pari - mutuel

races.

(2) Each permitholder of a thoroughbred,

harness, or greyhound racing facility shall

provide and maintain a detention enclosure

in a location approved by the division for

the purpose of securing urine, blood or

other samples from racing greyhounds or

horses. The detention enclosure at horse

tracks shall contain a wash rack, an office

for the division veterinarian, and not less

than six detention stalls with an adjacent

walking ring. The detention enclosure at

greyhound tracks shall be located within a

reasonable distance of the veterinary

assistant detention office and shall have a

chain link perimeter fence which will

prevent acces s of unauthorized persons. The

detention enclosure shall be large enough to

allow three dogs to be walked simultaneously

for the purpose of taking urine samples, be

partially covered to allow sampling during

inclement weather, and have sufficient

lighting to allow sampling during hours of

darkness.

70 . Th is " absolute insurer " rule makes a trainer

strictly liable for any drugs found in a racing animal . The

rule has been challenged on several occasions and has been

upheld . See Div. of Pari - Mutuel Wagering, Dep ' t of Bus. Reg.

v. Caple , 362 So. 2d 1350 (Fla. 1978); Hennessey v. Dep ' t of

Bus. & Prof ' l Reg. , 818 So. 2d 697, 700 (Fla. 1st DCA 2002);

2 5

Solimena v. Dep ' t of Bus. Reg., Div. of Pari - Mutuel Wagering ,

402 So. 2d 1240 (Fla. 3d DCA 1981).

71 . Petitioner, faced with this formidable authority,

launches a flanking attack on the absolute insurer rule,

based upon the language of s ection 550.0251(3), which provides:

The division shall adopt reasonable rules

for the control, supervision, and directi on

of all applicants, permittees, and licensees

and for the holding, conducting, and

operating of all racetracks, race meets, and

races held in this state. Such rules must

be uniform in their application and effect ,

and the duty of exercising this control and

power is made mandatory upon the division.

(Emphasis added.)

72 . Petitioner notes that each of the court cases

involved application of the rule to horse racing , asserts

that the rule is applied differently in the two sports , and

contends that the r ule is therefore invalid as applied to

greyhound racing . Specifically, Petitioner points to

language in Henness e y explaining the rationale for holding

horse trainers strictly liable , and notes that the opinion

discussed the fact that either the trainer or one of his

employees is with the horse at all times and that at no time

prior to a race is a trainer prohibited from seeing the

horse. Id. , at 699 - 700. In contrast, Petitioner note s, dog

trainers are not permitted in the kennel room and have no

access to their dogs for a period of time prior to a race,

and specifically not during the time that pre - race specimen

samples are collected. Petitioner quotes from Department of

Business an d Professional Regulation, Division of Pari - Mutuel

Wagering v. Alves , Case Nos. 11 - 1578PL, 11 - 1579PL (Fla. DOAH

Sept. 19, 2011; Fla. DBPR Oct. 12, 2011), " Holding the

trainer of record accountable is troubling where, contrary to

the record established in H ennessey , the trainer or his

employee is not with the greyhound at all times prior to the

race, and is in fact prohibited from being present. "

73 . Based upon these differences between horse racing

and dog racing, Petitioner urges that r ule 61D - 6.002 is an

invalid exercise of delegated authority because it is not

uniform in its force and effect, as required by section

550.0251(3), in violation of sections 120.52(8)(c), (d), and

(e).

74 . The phrase requiring racing rules to be " uniform i n

their application and effect " evidently first appeared in a

1935 amendment to the statute, only four years after wagering

on the results of horse and dog races was first legalized in

Florida . See Jones v. Kind , 61 So. 2d 188, 189 (Fla. 1952);

State ex r el. Mason v. Rose , 122 Fla. 413, 419, 165 So. 347,

349 (1936). In St. Petersburg Kennel Club v. Baldwin , 38 So.

2d 436, 437 - 38 (Fla. 1949), a State Racing Commission rule

prohibiting matinee performances at dog tracks that would

compete with afternoon hor se races was challenged . The court

construe d the phrase " such rules and regulations shall be

uniform in their application and effect " to require that

rules be of statewide application and effect . The court

found the rule at issue met that requirement because there

was no attempt at classification on any basis in the law .

The court went on, however, to invalidat e application of the

rule to the St. Petersburg track , because notwithstanding the

rule, the statute expressly provided t hat if there was only a

single licensed dog track in a county, it could operate for

90 days during the racing season.

75 . A few years later, the court noted that " uniform

application and effect " meant that racing policies must be

adopted as rules, rather than simply applied on an ad hoc

basis, and must be applied impartially. Jones v. Kind , 61

So. 2d 188, 191 (Fla. 1952)( State Racing Commission had no

authority to require stockholder to dispose of his stock, at

least without first adopting uniformly appl icable rules that

could be applied impartially ).

76 . Petitioner ' s argument would expan d the se

requirement s that rules be applied statewide without

favoritism or discrimination , to also require that they have

identical effect on both horse racing and dog racing.

77 . Even if the meaning of " uniform application and

effect " could be so expanded, it is clear that horse racing

and dog racing will never be precise ly identical. The

question is whether the differences are material enough to

destroy uniform ity in application for purposes of the rule.

R espondent ' s contention -- that the differences in the rule ' s

application in the two sports are not significant -- is

compelling . Respondent asserts that in all a spects most

pertinent to the court ' s opinion in Hennessey , horse racing

and dog racing are in fact very similar. T he court in

Hennessey noted that each person who handle d a horse prior to

the running of a race was either an employee of the track or

Department or was employed by or in a professional

relationship with the trainer. That is also true in dog

racing. While there is a period of time when a trainer has

no access to his dogs, no other person, other than employees

of the track or Respondent , has access during that time

either. In fact, Respondent argue s, allowing trainers to

access the dogs would mean less secur ity , not more, for the

racing animals. As emphasized in the cases, strict liability

is accepted as a condition of licensure. Hennessey v. Dep ' t

of Bus. & Prof ' l Reg. , 818 So. 2d 697, 701 (Fla. 1st DCA

2002)( L egislature granted the department specific authority

to hold a trainer responsible for the condition of animals he

trains and races if they have drugs in their system); see

also Hudson v. Tex. Racing Comm ' n , 455 F.3d 597, 601 (5th

Cir. 2006) ( absolute insurer rule does not assign fault, but

instead assigns responsibility as a contingency to being

licensed by the state) . T here is no practical alternative,

and the trainer is the best person to hold accountable .

78. The other allegations that rule 61D - 6.002 is invalid

are easily addressed. Petitioner ' s initial charge that the rule

is vague or vest unbridled discretion in the agency was not

pursued. The rule is anything but vague. It is in fact quite

clear and even harsh in its effect. A ssigning responsibility

to the person best suited to bear it , as approved by the

courts, is not arbitrary or capricious .

7 9 . Further, Respondent notes that its procedures do not

in any way prevent any greyhound trainer from witnessing the

pre - race collec tion of urine specimen s, because samples are

taken in an area open to view, though restricted to entry.

The fact that Petitioner does not have enough staff to do so

does not invalidate the Division procedures or the absolute

insurer rule . Respondent ' s ar guments are persuasive.

80 . Petitioner ' s further arguments -- including the citation

to the Alves case, supra , the contention that rule 61D - 6.005

provides due process " balance " to the absolute insurer rule, the

absence of cameras in the Palm Beach Kennel Club, and cit ation

to the Arkansas Supreme Court -- ultimately are offered to show

that due process forbids pre - race testing of greyhounds if the

trainer cannot always be present. Whatever the merit of this

claim , i t is not cogniza ble in an existing rule challenge

proceeding in this forum . Gulf Pines Mem. Park v. Oaklawn Mem.

Park , 361 So. 2d 695, 699 (Fla. 1978)( a court may enjoin

enforcement of facially unconstitutional agency rule because no

administrative remedy exists); Dep ' t of Admin., Div. of Pers. v.

State, Dep ' t of Admin., Div. of Admin. Hearings , 326 So. 2d 187,

189 (Fla. 1st DCA 1976) (existing rule may not be declared

unconstitutional in administrative proceeding) .

Attorneys ' Fees

8 1 . Petitioner seeks attorneys ' fees and costs pursuant to

section 120.595(4)(a) . This s ection provides that if an

A dministrative L aw J udge determines that all or part of any

agency statement violates section 120.54(1)(a), a n order shall

be entered against the agency for reasonable cos ts and

reasonable attorney ' s fees, unless the agency demonstrates that

the statement is required by the Federal Government to implement

or retain a delegated or approved program or to meet a condition

to receipt of federal funds.

FINAL ORDER

Upon consid eration of the above F indings of F act and

C onclusions of L aw, it is

ORDERED that :

1. Section 3 of the Greyhound Veterinary Assistant

Procedures Manual meets the definition of a rule and has not

been adopted pursuant to rulemaking procedures, in violation of

section 120.54(1)(a), Florida Statutes . Section 120.56(4)(d)

provides that the Department of Business and Professional

Regulation, Division of Pari - Mutuel Wagering , must immediately

discontinue all reliance upon Section 3, or any substantially -

similar statement , as a basis for agency action.

2. Petitioner failed to prove that Florida Administrative

Code Rule 61D - 6.002 is an invalid exercise of delegated

authority in violation of sections 120.52(8)(c), (d), or (e).

3. Jurisdiction is retained for the p urpose of

determining, if necessary, the amount of reasonable attorneys '

fees and costs to be awarded Petitioner for his successful

challenge under section 120.56(4). If the parties are unable

to resolve the amount of f ees and costs, a written request for

hearing on attorneys ' fees and costs shall be file d with the

Division of Administrative Hearings. Any such request for

hearing must be filed no later than 60 days after the date of

this Final Order.

DONE AND ORDERED this 29th day of January , 2015 , in

T allahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 2015 .

ENDNOTES

1/ All references to statutes and rules are to the versions

currently in effect, except as otherwise indicated.

2/ While the court did not find that Lanoue had standing to

challenge the unadopted rules, this was not due to any

distinction between standing to challenge rules and unadopted

rules, but rather because the court found the subject of the

unadopted rules Ï - de aling with approval of the source of the

alcohol referencing solution used in the test machines -- was " too

remote " and lacked the " direct impact " of the adopted rules.

Lanoue , 751 So. 2d at 99.

3/ There may in fact also be rare cases in which an unadopte d

rule challenge should be heard even though the only written

evidence of the policy statement is the charge in an

administrative complaint, where the petition alleges that the

agency has a generally applicable policy statement in existence

distinct from t he charge and that the complaint only reflects

that established policy. While such a case might be very

difficult to prove, a generally applicable agency policy

statement need not be in writing. Dep ' t of High. Saf. & Motor

Veh. v. Schluter , 705 So. 2d 81 (Fla. 1st DCA 1997).

4/ Unadopted rule challenges serve to enforce the rulemaking

requirements of chapter 120, an important public interest

distinct from that of a single respondent charged in an

administrative complaint. As stated in McDonald v. Depa rtment

of Banking and Finance , 346 So. 2d 569, 580 (Fla. 1st DCA 1977):

The APA does not in terms require agencies

to make rules of their policy statements of

general applicability, nor does it

explicitly invalidate action taken to

effectuate policy stat ements of that

character which have not been legitimated by

the rulemaking process. But that is the

necessary effect of the APA if the

prescribed rulemaking procedures are not to

be atrophied by nonuse.

The requirement to adopt rules was subsequently codified.

§ 120.535 , Fla. Stat. (1991). The attorneys ' fees provisions of

section 120.595(4) encourage affected parties to undertake this

" private attorney general " function, and so encourage agencies

to engage in rulemaking when appropriate.

COPIES FURNISHED:

Jennifer York Rosenblum, Esquire

13386 La Mirada Circle

Wellington, Florida 33414

(eServed)

Marisa G. Button, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 40

Tallahassee, Florida 32399 - 2202

(eS erved)

Jason L. Maine, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 40

Tallahassee, Florida 32399 - 2202

(eServed)

Jeremy E. Slusher, Esquire

Kubicki Draper

515 North Flagler Drive , Suite 1800

West Palm Beach, Florida 33401

(eServed)

Ken Lawson, Secretary

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

(eServed)

J. Layne Smith, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2201

(eServed)

Leon M. Biegalski, Director

Division of Pari - Mutuel Wagering

Department of Business and

Professional Regulation

Northwood Centre

1940 North Mo nroe Street

Tallahassee, Florida 32399 - 2201

(eServed)

Liz Cloud, Program Administrator

Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, Florida 32399

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within

3 0 days of rendition of the order to be reviewed, and a copy of

the notice, accompanied by any filing fees prescribed by law,

with the clerk of the District Court of Appeal in the appellate

district where the agency maintains its headquarters or where a

par ty resides or as otherwise provided by law.